Julia FrankAssociate Professor of Psychiatry and Director of Medical Student Education in PsychiatryGeorge Washington University School of Medicine

Justice Anthony Kennedy in Gonzales v. Carhart justified his decision in part on his belief that abortion may be a cause of psychiatric disorder in women. This statement was a red flag to me, a psychiatrist involved in women's health and also a teacher of medical students. I spend my professional life trying to get medical students to appreciate the reality of psychiatric disorders and to distinguish valid and invalid medical reasoning. Medical students parrot popular misunderstandings of many medical issues. The casual belief that abortion causes psychiatric disorders is rampant in naive students, until we beat it out of them. To read that a Justice of the Supreme Court was equally cavalier and misguided in spreading information that might influence difficult, occasionally life or death, medical decisions, hit me like a brick.

The actual opinion states: "While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. See Brief for Sandra Cano et al. as Amici Curiae in No. 05-380, pp. 22-24. Severe depression and loss of self-esteem can follow. " Although the newspaper accounts had reduced this relatively circumspect opinion to a crude misperception, the opinion still disseminates dangerous dis-information. It is indeed "exceptionable" to make consequential claims about women's health when "no reliable data" exist to support them.

The data supporting this claim are profoundly The articles I located through the website of the Elliot Institute, self-proclaimed as "one of the nation's leading authorities on post-abortion issues" (http://www.afterabortion.org/), either do not support the Institute's conclusions or are methodological nightmares. For example, the site promotes a Finnish study (Gissler, M., et. al., "Pregnancy-associated deaths in Finland 1987-1994 -- definition problems and benefits of record linkage," Acta Obsetricia et Gynecolgica Scandinavica 76:651-657 [1997]) showing that the death rate in women who have had abortions exceeds that of those who carried pregnancies to term. The Institute claims that the study refutes the generally accepted finding that early, elective abortion is safer than pregnancy, implying that abortion itself increases the risk of death. This analysis overlooks the obvious point that many women seek abortion because they are already in medical jeopardy--women who are able to carry a pregnancy to term are, as a group, more healthy than some who do not. Women who are depressed, impoverished, addicted or abandoned are presumably also over-represented in the population seeking abortion--abortion may be a marker for other health endangering aspects of some women's lives, but these data do not justify the implied claim that abortion itself increases death rates in women. Similar critiques apply to the related assertion that abortion is a recognized cause of psychopathology (and that abortion restrictions are justified as a form of preventive intervention). The opinion in Gonzales v Carhart skates perilously close to this unjustified claim.

Another study cited by the Institute reports and analyzes "negative postabortion psychological sequelae" in over 500 women in Russia and the US (Rue, V,Coleman.P, Rue, J, Reardon, D, Induced Abortion and Traumatic Stress: A preliminary comparison of Russian and American Women. Med. Sci Monit 101(10), SR 5-16.[2004]. What the article actually says, however, is that the personal and social context of abortion accounts for much of the distress found in a sample of women seeking help specifically for their postabortion concerns. Compared to a relatively homogeneous Russian population, the US women were twice as likely to report posttraumatic symptoms (not to be conflated with diagnosed PTSD) after abortion. The statistical determinants of this difference included prior belief that abortion was not a right, not having received counseling pre abortion, and feeling pressured into having the procedure. One could conclude that, in fact it was the perceived effect of not having a free choice, not the abortion itself, that lay at the root of the reported distress.

Pro-choice physicians do not deny that the range of reactions to elective abortion may include distress, regret, guilt, anxiety or other psychiatrically relevant symptoms. As a psychoanalytic case reported in the leading US psychiatric journal stresses, "the fact that a decision is advisable does not mean that it is devoid of meaning and feeling."(Stotland, NL, Abortion: Social Context, Psychodynamic Implications AJP Volume 155(7), 964-67. 1998) Many, if not most, medical decisions involve meaning and feeling. But to deny physicians and patients the right to make these decisions because they may be followed by regret or distress is untenable. We train physicians to make ethically complex decisions and to assist patients in their own ethical and medical reasoning. To "protect" women and physicians from making a choice that the court or some outsider might object to, by outlawing it, is a dangerous precedent. Should the court forbid someone to decide not to donate a kidney to someone else, because that decision, which is not determined by the patient's own threatened health, might lead to subsequent regret? Applying the logic of Carhart, the court seems to feel it would be proper to do this, if the right case came along.

In sum, the correlation between abortion and psychopathology, itself based on studies of biased samples with inappropriate controls, is at best a suggestion that elective abortion is a marker for a variety of circumstances (poor health, trauma during childhood, rape, lack of social support, cultural isolation, prior psychiatric disorders including substance abuse) that may contribute to the expression of symptoms and the development of disorders. Lack of perceived choice, even in studies that purport to show that abortion jeopardizes women's mental health, in fact emerges as one of the main contributing factors that account for adverse psychological outcomes.

When the Supreme Court draws the opposite conclusion, or at least gives credence to those who do, I shudder. Using medical information to support a legal argument is extraordinarily powerful--and dangerous. Nazis justified the holocaust based partly on the pseudoscience of eugenics. In our society, science or anything that smacks of science has great persuasive power. As a physician I have had years of training, and am now putting legions of students through the same experience, to learn to sort out good and bad scientific information. Justice Kennedy presumably has access to the most expert medical opinion in the country. Yet as a legal thinker, he feels free to base critical legal decisions that will ultimately shape critical medical ones on controversial scientific research interpreted in bad faith. As a physician, it is presumptuous of me to weigh in about a legal opinion, but I cannot sit by while the court makes claims in the name of my profession in support of a position I find untenable on scientific, ethical and clinical grounds.

I wish you would supply the missing verbiage at the beginning of this paragraph, which doesn't scan too well:

"The data supporting this claim are profoundly The articles I located through the website of the Elliot Institute, self-proclaimed as "one of the nation's leading authorities on post-abortion issues" (http://www.afterabortion.org/), either do not support the Institute's conclusions or are methodological nightmares."

I think you seriously misunderstand what the Court sees it's role as being, and how scientific evidence figures into this. The Court did not decide what abortion policy should be based on scientific theories. It was the legislature that enacted the law. The Court appears to have applied something like rational basis review to the law, which doesn't so much require the legislature to have been right, as it does that the legislature not have been starkly insane.

My intuitions may be wrong, but I believe the Court is trying to remedy some of its casuistry in Roe v. Wade with more casuistry, in order to balance its 1973 decision with the political instincts of a majority of Americans.

The current "balance" seems right. Reproductive self-determination, the interests of fetal life, the autonomy of the individual, the value of a common humanity, and many other competing interests were nullified in Roe v. Wade. The current stance, unimpeded abortion before week 23, abortion for maternal health only after, accommodates our intuitions, strikes a balance, by whatever casuistry available.

The "logic" is not in Kennedy's reasoning, any more than "logic" prevailed in Roe v. Wade, but in remedying a reach, by balancing competing interests, by fallacious appeals to a false science, the "logic" of political and moral instincts may yet be reached.

Two casuistries may not a right make, but they may finally offset some of the injustices of fallacious unilateral decisions by an unaccountable court divining "rights" by the 1973 decision. Call it a Brown v. Education to Plessy. A remedy.

Well, it does matter what type of rational basis the court applies--"with teeth" or not. But, rational basis even allows in some circumstances the court to hypothesize about the state's justifactions. Basically, anything goes under rational basis, as long as it isn't A.) insane or B.) animus.

Recall that the opinion addresses not abortions in general, but only the so-called partial-birth abortion. In other words, the 'rational basis' supporting the ban is not that women who undergo abortions will later regret it, but that a woman who has a certain kind of procedure will regret not having had a different procedure to achieve the same result. So apparently the relieance is not only on unreliable data, but unreliable and irrelevant data.

What is the "rational basis" for the notion that women are more likely to regret abortions than, say, men are to regret vasectomies?

"Making shit up" is not a rational basis for anything.

There are, in my view, two issues here. The first is why a "rational basis" test applies to abortion and how it can be consistent with "undue burden". I'll leave that aside for now.

The other issue is what people mean by "rational basis". Kennedy seems to have meant "logically rational". IOW, one could rationally make the argument that women might regret an abortion (or, pace jnk) this particular method of abortion. There's nothing illogical about this reasoning and it's intuitively plausible.

That's not, however, what I have understood the test to mean. I have always understood "rational basis" to mean factually rational". That, for example, is what the Court must have meant in, say, Romer (I'm going off memory that they discussed that there). A great many notions are logically rational without being factually rational.

I thought conservatives were supposed to be advocates of judicial restraint. Rational basis means that the courts will defer the the legislature in the absence of some constitutional reason not to. You complain that "rational basis" does not mean that the legislature was right, only that it was not "starkly insane." Are you sure you want [insert name of liberal judicial activist you most dislike] to be second-guessing the legislature and deciding whether it was "right"?

Brett, I know, would like to interpret federal powers as narrowly as possible, but in rejecting "rational basis," you are asking the courts to second guess states as well.

I'm not really sure how this has any effect on the opinion, or the important question: whether the constitution actually includes a right to abortion. It's really not relevant whether abortion is the best medical decision or not.

Is there evidence that "some women" who get abortions do not then regret them? Certainly Roe herself feels bad enough to petition the court every year. You are arguing against the idea that most abortions cause psychological problems, but that's not what Kennedy was saying.

[Julia Frank, from the post]: When the Supreme Court draws the opposite conclusion, or at least gives credence to those who do, I shudder.

It's not science. It's the RW favourite: Proof by anecdote. Kennedy says (correctly) that some of the amicus materials contain claims by people that they regretted their abortions. That such should be dispositive evinces a lack of interest in scientific rigour: Were these people randomly selected? Did they have a bias or any outside interests? What would their feelings be if they had chosen differently? All left unanswered (along with a raft of other questions). That someone made a claim under oath is sufficient for the scientific ignoramus but erstwhile "legal scholar" Kennedy.

The problem with the opinion is that it has no basis in fact. The Supreme Court opinion written by Kennedy is based on the idea on what a Normal woman should think and feel. This of course is not explicitly stated but from reading the opinion one can come to this conclusion. How a woman reacts to having an abortion is extremely personal. Some may have regrets, others may be relieved. This opinion would have made sense if there were a sizable number of women who experience regret. But there isn't. It's unfair to ban a medical procedure based on how a few individuals have regrets at the expense of many who do not. The Court could have established procedures in which some women could be provided with counseling, but it didn't. It seems to me that the Court was more interested in proving a point than actually resolving the issue.

"It's unfair to ban a medical procedure based on how a few individuals have regrets at the expense of many who do not."

Congress does a lot of things that are as unfair, and unfactually based, or even more so. As I say, welcome to the level of review most of us labor under.

This was not a case of the Court making policy, this was a case of the Court, at long last, deciding that Congress was going to be permitted to make policy.

Explaining this ruling does not mean that I approve of it. Unless Congress is going to act based on a claim that the unborn are people within the meaning of the 14th amendment, there's no basis in the federal government's enumerated powers for it to ban this, or any other, medical procedure.

That, however, is a fight we lost long, long ago, and the people complaining about this ruling are on the winning side of it. You nurture a Levianthan, and then get stepped on, don't expect a lot of sympathy from me.

The actual opinion states: "While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. See Brief for Sandra Cano et al. as Amici Curiae in No. 05-380, pp. 22-24. Severe depression and loss of self-esteem can follow. " Although the newspaper accounts had reduced this relatively circumspect opinion to a crude misperception, the opinion still disseminates dangerous dis-information. It is indeed "exceptionable" to make consequential claims about women's health when "no reliable data" exist to support them.

What "disinformation?"

The Court cited to the anecdotal affidavit evidence given by over 100 women who have undergone abortions and claim various psychological results to state: "it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained."

This is exactly the sort of testimony which Congress routinely takes in deciding laws of all stripes and, as has been observed above, is more than enough to justify the legislation under the rational basis review.

The Court made no claim that this passage was based on science of any type. Even so, that has not stopped many commentators from claiming or implying that the Court has made a scientific finding.

I think you were better served by your initial and correct reaction that this was a circumspect passage.

The Court cited to the anecdotal affidavit evidence given by over 100 women who have undergone abortions and claim various psychological results to state: "it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained."

This is exactly the sort of testimony which Congress routinely takes in deciding laws of all stripes and, as has been observed above, is more than enough to justify the legislation under the rational basis review.

So if we can get 100 people to swear that Dubyaism is mind-rotting, we can ban it? We even have some clinical data to bakc that one up....

There's a great deal wrong with Justice Kennedy's pop-psychology generalization about women and abortion even if he did cite "affidavit evidence" of "some" women.

The commentator cites some objections. Another objection not often heard, and not really welcome in polite company, is the fact that "some" women regret giving birth as episodes of infanticide, child abuse and neglect obliquely attest.

How many women feel this way? I have no idea. It's not none. Since it is such an unacceptable idea that women do not want the children they bear, it would probably be very difficult to collect court-worthy affidavits.

Justice Kennedy mentions 100 plus "regrets." If we multiply that 100 plus by 100 and so come up with an extremely rough guess of 11,000 women who regret an abortion every year (and the affidavits span several years) one can calculate the 0.9% of women come to regret their abortions - based on 1,300,000 abortions yearly.

To suspect that an equal percentage of women regret their children might or might not be unreasonable. (This is, I admit, getting pretty tenuous, and more than a little silly. But so is Kennedy's argument.) Let us halve the percentage - 0.45% of 4,100,000 live births - gives us 18,400 women who yearly regret their children.

So what have we proven. Nothing really. The psychological state of the patient has little or nothing to do with which medical procedure should be used in any given instance. No one denies, for example, that open coronary artery bypass is followed by far more physical and psychological morbidity than angioplasty. That "some" patients experience more anxiety beforehand and more depression after open heart is, however, never advanced as a reason to avoid open heart procedures when the patient's condition indicates that it is the best option. The patient's life and future health depend on the most appropriate procedure being used.

And yet, Justice Kennedy suggests, and many here seem to agree, that future problematic psychological morbidity is sufficient reason to ban a certain physical procedure which is often safer for the patient. This opinion does not change the abortion. Just the method of doing it.

This is an irrelevant, illogical and ultimately dangerous argument. The Justices who used it should be embarrassed. Anyone who has studied for a profession should be uneasy. It is clear that the professional ends are okay, but means may be disallowed on irrelevant grounds.

What is curious is not that the Court made a passing reference to the fact that some percentage of women claim to suffer psychological after affects from killing their unborn children, but rather that the scientific community has not been investigating this decades old hypothesis.

What is curious is not that the Court made a passing reference to the fact that some percentage of women claim to suffer psychological after affects from killing their unborn children, but rather that the scientific community has not been investigating this decades old hypothesis.

What is there to fear from doing such research? The results?

I dunno, "Bart". I think that it may be more worthwhile to investigate and hopefully cure the phenomenon I mentioned in my previous post. It was of epidemic proportions and a clear public health menace, albeit it may possible have crested and be on the downhill slide with an incidence rate of approximately 28 percent.

What is curious is not that the Court made a passing reference to the fact that some percentage of women claim to suffer psychological after affects from killing their unborn children, but rather that the scientific community has not been investigating this decades old hypothesis.

What is there to fear from doing such research? The results?

Good question. Please forgive the length, but a little one-second search on Web of Science for [abortion regret] gets us these studies. I've redacted their abstracts, but not their meaning, and provided citations for those who want to know more about the methodologies used.

A total of 1851 women who had an induced abortion during the previous 3 years were interviewed...Regret for abortion was expressed by 29.6% of the women. However, only 7.2% said they would not advice others for induced abortion.

CONCLUSIONS: Most women do not experience psychological problems or regret their abortion 2 years postabortion, but some do. Those who do tend to be women with a prior history of depression.

Title: [Psychological consequences of induced abortion]Vernacular Title: Psykiske folger af provokeret abort.Author(s): Schleiss, L; Mygind, K A; Borre, R V; Petersson, B HSource: Ugeskr Laeger 159 (23) : 3603-6 1997 Jun 2Language: DanishAbstract: One hundred and thirty consecutive women were interviewed about the development of psychological symptoms related to induced abortion two days before and four months after the abortion. Sixty-one (47%) participated in the second interview. Of the 61 women, 52% were psychologically influenced before the abortion to an extent which indicated severe crisis or actual psychiatric illness. Four months after the abortion 13 of these women were still psychologically affected. Furthermore, five women who were not affected before the abortion had developed psychological problems. Among ten of these women (16%) the physiological problems could only be related to the circumstance in connection with the abortion. For a number of women (30%) the abortion had a negative influence on their relationships and their sex lives, whereas other claimed that their relationship had become closer because of their reactions towards the abortions. In spite of these conditions all women indicated that their decision about the abortion had been the correct one under the given circumstances.

Research strongly supports the view that pregnancy termination is seldom associated with adverse psychological sequelae in the short to medium term, but experience shows that there is a small group of women who experience long and intense suffering.

Other Abstract: Anti-abortion groups in the US cite the existence of a post-abortion syndrome--a sense of loss, emptiness, and grief similar to that reported by trauma survivors. Although research on the longterm effects of induced abortion is marred by methodological errors, most studies have found no adverse psychological sequelae; rather, there appears to be a sense of relief and opportunity for personal growth. Nevertheless, there is a small group of women who do experience emotional distress after abortion and it is important to identify the demographic, social, and psychological factors that place women at risk of such a reaction. In terms of demographic factors, young age (adolescence), low or nulliparity, 2nd-trimester procedures, and Catholicism have been characteristics of women who suffered post-abortion depression. Of the social variables that have been examined, a lack of support from significant others (parents or partner) has been linked in some studies to emotional distress after abortion. A relatively consistent finding is that women who feel coerced to abort or are ambivalent about their decision at the time of the procedure are most likely to experience regret, depression, and anger.

The methodology and results of studies carried out over the last twenty-two years are examined critically. The unanimous consensus is that abortion does not cause deleterious psychological effects. Women most likely to show subsequent problems are those who were pressured into the operation against their own wishes, either by relatives or because their pregnancy had medical or foetal contraindications. Legislation which restricts abortion causes problems for women with unwanted pregnancies and their doctors. It is also unjust, as it adversely most affects lower socio-economic class women.

The outcome for women who were refused an abortion and the effects on the children born as a result have been discussed in several studies. In 1 survey, 24% of 249 women who were refused abortion were significantly disturbed after 18 months. Many studies comment on the value of counseling in the abortion decision, but few comparison studies have actually evaluated abortion counseling. A large amount of previously reported research on the psychiatric indications of abortion may be unreliable because women seeking abortions on mainly social grounds used to have to show psychiatric disturbance in order to obtain a legal abortion.

Studies have shown that very few women experience significant depression in the weeks following abortion and most have strong feelings of relief and happiness; what mild feelings of guilt, regret, or remorse do exist immediately following abortion tend to diminish quickly. Traditionally attitudes were that abortion could even precipitate psychosis and cause infertility, depression, and sexual dysfunction. The findings of a 1963-65 study of 116 women who underwent abortions indicate that few women had regrets immediately. Studies done after the 1973 Supreme Court decision conclude that even psychiatrically disturbed women who undergo abortion remain stabilized or improved afterwards. Women who do have postabortion problems are usually those who were late aborters, who feel that the decision was not freely made, or that the pregnancy fulfilled certain needs.

So, clearly decades of scientific research HAS been done. We can argue over whether the few should outweigh the majority in policy decisions or whether rational basis review trumps science, but Dr. Frank is absolutely correct when she says that Kennedy's assumption of how women respond to abortion was "cavalier and misguided."

Thanks for the summaries. Do you have a link to where you obtained this list?

In any case, these studies appear to nearly all confirm the Court's observation: "it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained." Indeed, there appear to be a subset of women whose trauma goes far beyond regret.

However, the sample sizes of these studies appear to be very small and I am unsure of what methodology was used to identify these populations. Additionally, the time periods are also often limited. Therefore, I am not sure how reliable the findings are.

Does anyone know if the massive nurses' health database used for may more comprehensive studies contains data sets for abortion and psychological problems?

Thanks for the summaries. Do you have a link to where you obtained this list?

In any case, these studies appear to nearly all confirm the Court's observation: "it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained." Indeed, there appear to be a subset of women whose trauma goes far beyond regret.

However, the sample sizes of these studies appear to be very small and I am unsure of what methodology was used to identify these populations. Additionally, the time periods are also often limited. Therefore, I am not sure how reliable the findings are.

Does anyone know if the massive nurses' health database used for may more comprehensive studies contains data sets for abortion and psychological problems?

In five simple words, "Bart": Do your own freakin' research!

<*SHEESH*> I know "scholarship" ... nay, reading ... is not one of your strong suits, but Google is your friend. Not to mention the blindingly obvious: PMS_Chicago told you how he got that list.

However, the sample sizes of these studies appear to be very small and I am unsure of what methodology was used to identify these populations. Additionally, the time periods are also often limited. Therefore, I am not sure how reliable the findings are.

You're right to worry about methodology and sample size. In many cases, the numbers are fairly low, but of course, it doesn't take that many people to get an accurate cross-section of the population-at-large. Most of the studies quoted there used some form of random sampling, which alleviates biases in the data.

The data used in studies that claim the opposite relation (that abortion leads to regret and psychosis) are often self-selected groups. That is, no random sample was performed, and they therefore are not adequate samples of the population at large. Often they are from the same church or denomination, and are biased towards certain types of people. In short, they do not constitute a representative sample, and any findings based on such data are unreliable. It's bad science.

Indeed, there appear to be a subset of women whose trauma goes far beyond regret.

And that subset is generally disturbed prior to the abortion, too. I wonder to what degree you would have us sacrifice medical procedures because they didn't cure pre-existing emotional problems.

As for the link to the database, I have access through my university's library. Here's a link to the Web of Science product page. If you don't have access already, you might find a way to get it through Thomson Scientific. Not sure how much that would cost, but it might be worth it in the long run if you enjoy debating scientific issues like global warming and the psychological effects of abortion. :)

The poster citing to an authority to make an argument, not the reader, has the responsibility to link to that authority if possible.

Hah-ha-ha-HA-HAHH-hah-heh-heeeee. Umm, that's a good one, "Bart". You're such a kidder. Really. Gotta love your cites, when you actually come out with 'em (which is rare, even when asked). Then there's that little contretemps with the Watergate minority report of yours, your cite of Brown II, etc.....

What I find more profoundly disturbing is the number of women who aren't troubled by killing their unborn children. What does that say about our society, when the mothers, can, evidently, not suffer emotional repurcussions for killing their young. Especially, when the vast, vast majority are NOT for rape, incest, or physical health issues. The vast majority of abortions occur for what is broadly construed as "convenience" reasons. That is what I find truly disturbing.

The moral and legal repulsiveness should not hinge on regret. Do we say a murderer should go free if he doesn't regret what he does? No, I don't think so.